I’ve written a new post for Fox’s In the Weeds blog. See my post which provided an update regarding Florida medical marijuana litigation.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

During the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and

The employer failed to take further action such as investigating, discharge, or reassignment.

However, in either a negligent hiring or negligent retention action, the tortious conduct of the employee must have been foreseeable to the employer to hold the employer liable. An employee’s wrongful conduct that is unrelated to the conduct that ultimately harmed the plaintiff will not be enough.

To avoid liability, employers should have procedures in place to conduct an appropriate investigation before hiring an employee and to monitor an employee once retained.

Megan A. McNamara is an attorney with the law firm Fox Rothschild LLP. Megan practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. Megan focuses her practice on commercial and business litigation throughout Florida. You can reach Megan at (561) 804-4445 or mmcnamara@foxrothschild.com

My November, December, and February posts, discussed details of homestead protection in Florida including requirements, benefits and pitfalls. If you are married, another asset protection and estate planning tool available to you is Tenants by the Entirety (“TBE”) ownership. In Florida, a married couple may own several types of property TBE, including, but not limited to, bank accounts, real property (including their homestead) and personal property. In fact, Florida law presumes that property acquired by a married couple is TBE property if the “six unities” of TBE ownership are present. The six unities required for TBE ownership are (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Under Florida law, the benefit of owning property TBE is that it is exempt from process to satisfy debts owed to individual creditors of either spouse. This is because an interest in TBE property is not equivalent to one half of the equity in the property, but rather, an inseverable interest in the whole owned by both spouses.

However, TBE is not a perfect asset protection tool as it can be broken, severed, and/or create unwanted liability.

TBE property is not exempt from process to satisfy joint debts of both spouses;

TBE ownership is not right for everyone or every situation, but it is worth considering if it is available to you.

Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

There has been a lot of press lately on animals (and humans) behaving badly on airplanes. Some of the problems in the friendly skies relate to the huge increase in passengers bringing on animals they claim to be emotional support animals (“ESAs”). See my prior post for details.

The ADA’s definition of service animals is much narrower than the Air Carrier Access Act and restricts service animals to dogs (with one exception for miniature ponies) and the dog has to be individually trained to provide an actual service or perform tasks for the disabled person.

U.S. airlines flew 751,000 comfort pets last year, an 80 percent jump from the previous year, according to an informal survey by industry group Airlines for America. Those animals include dogs and cats, yes. But also rabbits, ducks, parakeets and monkeys.

All those animals on planes have created safety issues for other passengers which have included bites and attacks by the animals, increased allergic responses, and even simply creating risks by having unsecured cargo in the cabin. Moreover, with no empty seats on flights these days having pets on laps (including large pets) has created conflict between passengers and between passengers and the crew.

Create a criminal penalty for claiming that a pet is a service animal and for falsely claiming disability needs; and

Require federal agencies to establish a minimum standard of service-animal behavior training for the animals.

While some states have considered or passed legislation imposing criminal penalties for passing off a pet as a service animal, Congress has previously held back in doing so until now.

Additionally, imposing a standard of training for service dogs would be a major change to Federal law.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.

That’s a quote from Ferris Bueller, but these days the sentiment is equally applicable to Americans with Disabilities Act (“ADA”) Title III litigation in Florida. Just a few months ago, I was posting about ADA Title III web site accessibility lawsuits and making your web site accessible for the visually impaired. Now, the Plaintiffs’ Bar has moved on to the next wave of ADA Title III litigation.

The latest trend is ADA Title III litigation focused on hotel web sites and this type of litigation combines elements of past ADA Title III litigation in that it deals with the physical space at the hotel (ADA accessible rooms) as well as how those rooms are described on the hotel’s reservation system (which often, if not always, includes a web site) and how the rooms are reserved and held for guests.

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2) Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3) Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

At present, even though these regulations went into effect in 2012, there is limited case law interpreting how these regulations will be applied to hotels and other vacation rental facilities that are considered public accommodations. As such, best practices would require hotels to follow the regulations as written.

It should also be noted that Plaintiffs’ attorneys will likely eventually sue regarding individual units that are rented by owners on a VRBO or Air BnB type platform. Individual units are not exempt from the obligations set forth in subsections (i) and (ii).

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases. Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

On Fox’s Tax Controversy Sentinel blog, partner Charles Bender recently examined a Florida case involving the state’s Homestead Exemption. The Exemption allows for a reduction in local real estate taxes and also provides that the homestead is exempt from claims of creditors of Florida residents. In the Circuit Court for Palm Beach County case Ramos v. Motamed, a creditor sought to enforce a judgment against a debtor by challenging his change of domicile to Florida and his use of the Exemption to protect his luxury condominium from creditors. Though the debtor took the usual official steps to establish residency in Florida, at trial the plaintiff presented a crucial exhibit to the contrary.

Because of advancements in the use of digital technology in the administration of construction contracts, the 2017 AIA documents now default to the AIA’s Digital Data Use and Transmission protocol established in 2013 as set forth in the E203. Section 1.8 of the A201 now provides that the contractor’s reliance on BIM modeling will be at its “sole risk and without liability of any other party” unless the parties use AIA E203 and G202 BIM Modeling documents. Clearly, this provision allocates significant risk to the contractor. Contractors’ and their attorneys should consider modifying this language if the AIA digital transmission documents are not agreed to and utilized by the parties.

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W Mason is an partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W is Board Certified in Construction Law by the Florida Bar Association. W focuses his practice on construction and commercial litigation throughout Florida. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

I’ve posted over on Fox’s In the Weeds blog. See my post regarding a recent Florida Court decision that found in favor of a medical marijuana patient who wants to or needs to grow his own medical marijuana.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

In my August post, I discussed two cases. In the Failla case, the Eleventh Circuit affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not physically deliver the property to the secured party, the debtor is precluded from taking any action which would interfere with the secured creditor’s ability to obtain legal title to, and possession of, the property through legal means.” Thereafter, the S.D. Bankruptcy Court held, in the Kurzban case, that “the Eleventh Circuit did not rule that a debtor’s decision to surrender lasted in perpetuity“.

As of October 1, 2018, a new statute which expands on the spirit of both the Failla and Kurzban cases will apply to all foreclosure cases filed on or after October 1, 2018. Specifically, Senate Bill No. 220 was signed into law by Florida Governor Rick Scott this month and will become effective as Section 702.12, Florida Statutes.

Section 702.12 will streamline the foreclosure process for mortgage lenders where bankrupt borrowers have filed an intention to surrender the lender’s property, not withdrawn that intention, and the Bankruptcy Court has entered a final order either granting the bankruptcy debtor(s) a discharge, or confirming a repayment plan that provides for surrender of the property. If these circumstances are present, the statute provides mortgage lenders with a rebuttable presumption that the borrower has waived any defenses to foreclosure. The statute further provides that the court shall take judicial notice of Bankruptcy Court orders upon the request of lender.

While Section 702.12 is a positive new law for mortgage lenders, the advice in my August post, still applies – Do NOT sit on your rights! Section 702.12(3), similar to the ruling in Kurzban, provides that the borrower is not precluded from raising a defense based on the mortgage lender’s action or inaction subsequent to the filing of the bankruptcy documentwhich evidenced the borrower’s intention to surrender the mortgaged property to the mortgage lender.

Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

I’ve posted again on Fox’s In the Weeds blog. See my post regarding changes to Florida’s medical marijuana laws and funding from the 2018 Florida legislative session.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

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